SeaWorld fights to get trainers back in tanks with killer whales

Case goes before appellate court in DC

The legal battle over SeaWorld trainers being allowed in the water alongside killer whales is being fought in a Washington, D.C., courtroom.

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ORLANDO, Fla. - A federal appellate court in Washington is hearing arguments on whether a citation issued to SeaWorld should be upheld following the death of a trainer.

Three judges on the U.S. Court of Appeals for the District of Columbia listened to arguments Tuesday.

SeaWorld is contesting two violations issued by the Occupational Health and Safety Administration following the death of Orlando trainer Dawn Brancheau.

Brancheau died in February 2010 when a six-ton killer whale named Tilikum pulled her into a pool.

Last year, an administrative judge upheld the citation but downgraded the violations from willful to serious. As part of the citation, trainers were banned from being inside tanks with the orcas.

Animal rights activists argue that the orcas belong only in the wild.

"Captivity is cruel and unusual punishment for them," said Ellen Ericksen, who has led many protests and blames SeaWorld for creating danger. "Because of the captivity, these orcas become aggressive and violent."

SeaWorld is arguing that the job safety agency overreached with its citation.

One of the attorneys representing the marine park before the appellate court is the son of U.S. Supreme Court Justice Antonin Scalia.

SeaWorld attorney Eugene Scalia likened the sanctions on SeaWorld to putting speed limits on NASCAR events or telling the National Football League to play touch football.

"It's as if the federal government came in and told the NFL that close contact on the football field would have to end," he said.

SeaWorld issued a statement, which read in part:

The safety of zoological staff and the welfare of our animals are SeaWorld's highest priorities. Close contact with these animals is critical to providing a safe environment for our zoological staff and appropriate care for SeaWorld animals.

Ericksen added, "They want their trainers back in the water with orcas at any risk. They don't care about trainers. They only care about financial profit of putting whales in tanks with trainers."

A former trainer told 10News by phone that it is purely a financial decision and that SeaWorld wants to keep crowds large and happy.

Samantha Berg said, "If trainer safety was what was important, then they would not be pushing to get their trainers back in the water."

The park is constructing a lift mechanism for the pool floor to raise the whale and trainer out of the water in less than a minute in case of emergency. Berg worries about that.

"If part of your body is in the mouth of the killer whale, thrashing you around under water and all of a sudden the floor goes up and you aren't cushioned by the water, you'd be thrashed like a rag doll," she said.

Meanwhile, a protest was set to be held Tuesday at SeaWorld San Diego against the park's interactions with killer whales.

Local expert: Decision could make or break SeaWorld

San Diego State University marketing professor Miro Copic said SeaWorld sells killer whales as entertainers, and he told 10News, "The orca show is their signature show. Shamu is their signature character … people worldwide know Shamu … Without Shamu and a positive image of Shamu … it really hurts SeaWorld in a lot of ways."

Copic also argued that nothing hurt the brand like the documentary "Blackfish," which focused on Tilikum.

"All of a sudden, all of the media around the country started moving it away from an entertainment conversation, and started making it about orcas," Copic said.

10News learned SeaWorld's attendance is down and the park has cut their prices. The company is also installing new tanks with floors that rise out of the water, in case of a problem.

"This trial that is in essence about how they do their business, takes a much greater importance if they hadn't attacked the movie the way that they did," Copic said, referring to SeaWorld's campaign against "Blackfish" before it was even released.

Last week, SeaWorld's chairman of the board sold $1.3 million in shares. On Wednesday, the company will report its third-quarter financial reports, which include the summer months -- a period considered the most important of the year for theme parks.

Copyright 2013 Scripps Media, Inc. The Associated Press contributed to this report. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.